How should history inform the study, practice, and interpretation of law? As I mentioned in my previous post (see below), professors Jack Balkin (Yale) and Randy Barnett (Georgetown) — two influential contemporary constitutional law scholars — presented competing theories of legal history during an engaging, back-and-forth four-hour panel discussion in D.C. this weekend.
For starters, Professor Balkin began his talk by drawing a fundamental distinction between memory and history. According to my notes of Balkin’s talk, history qua history is what actually happened in the past, while memory is what we remember about the past. For Balkin, memory is not only contingent, since the events and people that we choose to remember about the past can change over time; it can also be selective and thus distorting due to what Balkin eloquently calls the problem of “erasure” — i.e., which accounts of history do we choose to remember, and which get erased, or more simply put, what gets left out and why?
By contrast, Professor Barnett started off by drawing a direct analogy to the rules of evidence used by trial judges when they are trying cases. What happens when, say, the lawyer for one side wants to introduce a new piece of evidence but the lawyer for the other side objects on relevance grounds — that the evidence is not relevant to the outcome of the case and should thus be excluded? Generally speaking, the judge will apply a three-part test to decide whether to admit — or exclude — the evidence:
For my part, I much prefer Barnett’s lawyerly approach to legal history to Balkin’s quasi-nihilistic approach. Balkin talks a good game (as most law professors do) but at the end of the day his theory of history is no theory at all. For Balkin, what lawyers and law professors and judges call “history” is really just “memory”, since we can never really know what happened in the past; all we can do tell stories about the past, and those stories will always be inherently unreliable and value-laden, depending on who is telling the story and the reasons he may have for doing so.
Barnett’s approach to history, in contrast, is much more practical and rational: when we are doing legal history, we should be posing the same types of critical questions judges ask when deciding whether evidence is relevant. That is, when a lawyer or law professor uses a piece of history as evidence in support of a particular claim, we should be probing whether that history is material to the claim and whether it makes that claim more or less likely to be true. This method, at least, is something I can work with!
One last note (for now): in addition to professors Balkin and Barnett, a number of other scholars, including Charles Barzun (Virginia), Jonathan Gienapp (Stanford), and Allison LaCroix (Chicago), made some original points during this weekend’s discussion. I have to finish updating my syllabi for the new semester (which, for me, begins this Monday), so I will survey their contributions in the next day or two …
That the was the theme of an engaging discussion I attended on Saturday morning at the annual meeting of law professors in Washington, D.C. This four-hour marathon panel featured two living academic legends, Jack Balkin (Yale) and Randy Barnett (Georgetown), who addressed an important theoretical and practical question: How should history inform the study, practice, and interpretation of law? Since most of my own scholarly work of late has been historical in nature, including “Coase’s Parable” (2023), “Adam Smith through the Eyes of Horace Walpole” (2022), “Adam Smith in Love” (2021), “Guaranteed Income: Chronicle of a Political Death Foretold” (2020), and “Domestic Constitutional Violence” (2019), I just had to attend this panel, and as it happens, Professors Balkin and Barnett did not disappoint. They presented two competing but compelling theories of legal history. Alas, I have to catch a flight back home, but rest assured I will compare and contrast their approaches to legal history in my next post.
Don’t throw out your Christmas tree just yet: today (6 January) is the Feast of Epiphany or “Three Kings Day”! (See also here.) For my part, I will spend the first part of the day attending a special extended session on “The Uses and Misuses of History” at the annual meeting of the Association of American Law Schools in Washington, D.C. — not just any ol’ run-of-the-mill academic panel, mind you, but a four-hour marathon discussion featuring (among others) professors Jack Balkin (Yale) and Randy Barnett (Georgetown), both of whom I greatly respect and admire. Come to think of it, since most of my own scholarly work is of a historical nature, I can’t think of a better early morning Three Kings Day gift to myself. I will report back in the next day or two.
What is Gödel’s loophole, and why is this puzzle relevant to our times? I will be addressing these questions when I present my work-in-progress Gödel’s Interbellum at the annual meeting of the Association of American Law Schools in Washington, D.C. later today (#AALS2024). My colleague Jayanth Krishnan, a law professor at Indiana University, will be commenting on my paper; in the meantime, for a summary of my work see my post “Prequel to Gödel Loophole”, which I am reblogging below:
For your refernce, below are links to my five-part review of Paul Sagar’s Adam Smith Reconsidered: History, Liberty, and the Foundations of Modern Politics (Princeton University Press, 2022):
1. The Real Das Adam Smith Problem? (review of the introduction)
2. Digression re: commercial society and Smith’s four-stages of history (review of chapter 1)
3. Law and liberty: an inverse relation (and the $64 question) (chapter 2)
4. Smith versus Rousseau (chapters 3 & 4)
5. Another Adam Smith Problem (chapter 5)
Last but not least, I will review the conclusion in the next day or two.
Alternate title: “The $64 Question: Part 2” (FYI: here is part 1)
Note: Thus far, I have reviewed the first four chapters of Paul Sagar’s Adam Smith Reconsidered; today, I will conclude my review with Chapter 5 (“The Conspiracy of the Merchants”), the last and best chapter of this excellent and well-researched book.
Previously (see here), I wrote about the so-called “Das Adam Smith Problem”: the supposed contradiction between the famous “invisible hand” of Smith’s Wealth of Nations and the “impartial spectator” of his Theory of Moral Sentiments. (In short, one is a cold-and-calculating self-regarding creature, homo economicus; the other is altruistic and full of fellow feeling.) I also mentioned the inherent tension between markets and morality more generally. Paul Sagar, however, identifies a further possible “Adam Smith problem” — perhaps the greatest Smithian paradox of all — in Chapter 5 of Adam Smith Reconsidered.
In brief, Chapter 5 begins with one of my favorite Adam Smith quotes of all time: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the publick, or in some contrivance to raise prices” (Smith, Wealth of Nations, I.x.c.27, quoted in Sagar 2022, p. 187). Worse yet, using the example of the East India Company, Professor Sagar further adds that these merchant conspiracies not only harm the public; they also threaten a nation’s economic prosperity writ large: “the most pressing dangers to modern commercial societies arose not from the alleged impacts of markets upon morals” but rather from these self-serving and rapacious merchant conspiracies (Sagar, p. 188).
Although it is easy to see why such collusion among the merchant classes is problematic — since they are simply enriching themelves at the expense of consumers — why do I describe the conspiracy of the merchants as “paradoxical”? The paradox is this: on the one hand, the merchant classes “are dangerous to a modern commercial society” (since they will raise prices, obtain ill-gotten subsidies, and bend the rules in their favor), but at the same time, they are also “entirely necessary to [a modern commercial society’s] continued operation and flourishing” (Sagar 2022, p. 207). (As a further aside, I would only add that Smith’s conspiracy of the merchants — and of today’s large corporations, I might add — not only harms consumers and threatens economic growth and prosperity writ large; it can also destabilize the rule of law — and rule of law is an essential ingredient of markets and of a successful commercial society, as Sagar himself correctly notes in Chapter 2 of his book; see here.)
But how can the merchant classes be both necessary and dangerous, or good and bad, at the same time? In a nutshell, they are good when they are pursuing legitimate commercial activities and playing by a fair set of rules that equally apply to all firms, yet they are bad when they try to bend these rules or conspire to raise prices or obtain subsidies or other special favors from those in power at the expense of the general welfare of the public. And this delicate dichotomy, in turn, poses an even deeper and more fundamental Smithian challenge: how can we ever hope to constrain the self-serving rent-seeking activities of merchants (and of large corporations) without stifling their wealth-maximizing commercial activities?
That, in a nutshell, is what I am calling the “Real Adam Smith Problem”, and however this dilemma is solved, Adam Smith deserves to be considered the first public choice theorist as well as the first scholar to diagnose the problem of rent-seeking.
Update: since I missed my morning flight to DCA (thanks TSA and CLEAR; see below), I will head off to Zaza’s in Terminal B to finish reading and reviewing Paul Sagar’s Adam Smith Reconsidered. In the meantime, I just have to say: it’s 2024, so why are we still being required to remove our shoes at the airport?
I found this thread on Twitter to be helpful (see below). PS: I absolutely positively refuse to call Twitter “X”, and I dislike hate everything that Elon Musk has done to this once glorious platform. I have even muted that megalomaniac’s tweets from my feed.
Here, I will review the next two chapters of Paul Sagar’s 2022 book Adam Smith Reconsidered, beginning with Chapter 3, which is titled “Smith and Rousseau, after Hume and Mandeville” — four of my favorite 18th-century figures! The main subject of this chapter is one of Adam Smith’s earliest published works: a short essay that the young Scottish professor published in the Edinburgh Review in 1755 (available here via Google Books; see pp. 121-135). Among other things, Smith, who was 32 years old at the time he wrote his essay, reviews J. J. Rousseau’s Discourse on Inequality, an English translation of which is available here.
So, what did Smith think of Rousseau, and what influence did this reclusive Swiss author have on Smith’s intellectual development? In summary, the academic literature is sizable (see, for example, the collection of essays in this book, the cover of which is pictured below), and according to Sagar, the scholarly consensus is that Smith considered the Swiss scholar “a major intellectual interlocutor and challenger” (Sagar 2022, p. 116). Some scholars have even concluded that Smith wrote his first great work, The Theory of Moral Sentiments, in direct response to Rousseau’s Discourse.
Professor Sagar, however, claims this consensus is wrong: Smith would have considered Rousseau’s ideas either obsolete or unpersuasive! According to Sagar, Smith’s Theory of Moral Sentiments was more influenced by David Hume, Bernard Mandeville, and others than by Rousseau. For my part, I won’t rehash the particulars of Sagar’s meticulous, if not tedious, line of reasoning. Instead, it suffices to say that by the end of Chapter 3 Sagar concludes that “the influence of Rousseau upon Smith is at best minimal and secondary” (Sagar, p. 141).
So, is Professor Sagar’s contrarian assessment correct? I hate to be that guy (again!), but there is one question that Sagar himself admits he is unable to answer. (On this note, see Sagar, p. 126.) Specifically, if the influence of the Swiss author on Smith really were de minimus, if Adam Smith viewed Rousseau’s ideas as “obsolete, or without force” (Sagar, p. 117), then why did the Scottish philosopher choose to review Rousseau’s Discourse on Inequality in the first place? Alas, Prof Sagar’s own response to this query is telling: “we simply do not know why Smith reviewed Rousseau for his Scottish audience” (p. 126), it being “doubtful [that] we will ever have an entirely satisfactory answer” (ibid.).
The most plausible answer to the above question, however, is staring us in the face: the Scottish philosopher-professor reviewed Rousseau’s Discourse precisely because he (Smith) indeed took it seriously, at least in 1754 or 1755 when he first read Rousseau’s work. (The Discourse on Inequality was first published in Geneva in 1754.) After all, however feeble his arguments in the Discourse, Rousseau was a leading light of the great Enlightenment movement sweeping Western Europe, and Smith himself devotes half of his 1755 essay to one person: Rousseau! (See pp. 130-135 of this issue of the Edinburgh Review.) That said, it is entirely possible that Smith may have at some point later changed his mind about the Swiss scholar — and for the various reasons set forth in Chapters 3 and 4 of Sagar’s book.
Pause. Why does any of this matter? Because according to Professor Sagar’s revisionist reading of Smith and Rousseau in Chapters 3 and 4 of his book, these great Enlightenment thinkers have radically different views about the moral implications of markets. For Rousseau, it is the pursuit of luxury goods — and the concomitant growth of commercial society more generally — that is the main source of man’s moral corruption, while Sagar’s version of Adam Smith is less troubled by commerce, luxury goods, etc. and more worried about inequality, or in the words of Sagar himself, “it is inequality, and not mere riches …, that makes the real difference for Smith” (Sagar, p. 161). Wait … say what?!
To make his revisionist interpretation of Adam Smith’s “egalitarian impulses” (p. 65) make sense, Sagar devotes most of Chapter 4 (“Whose corruption, which polity?”) to a close reading — and tedious reinterpretation — of the poor son’s paragraph in Smith’s Theory of Moral Sentiments. Alas, although I am willing to concede that Sagar’s interpretation of the poor son’s paragraph is persuasive (see especially pp. 173-176), his larger point about Smith’s diagnosis of the source of moral corruption is way off the mark. Yes, Smith was a champion of equality before the law, i.e. the classical liberal idea that everyone, including the lawmakers themselves, are bound by the law, but Smith was also a champion of markets, and markets by definition generate economic inequality.
As it happens, Sagar himself grudgingly concedes this point in a footnote: “We can agree with [Smith scholar István Hont] that Smith [sided] with Locke, and against a thinker like Rousseau, in judging that economic inequality is on balance justified if the result is an absolute and massive improvement in the condition of the poor” (Sagar p. 171, n.39). But back to the topic at hand: Smith versus Rousseau. The real difference between these two intellectual giants is that one was a critic of markets and private property; the other, their greatest defender. Sagar’s revisionist reinterpretation of Smith is a textbook example of a scholar from the present forcing a figure from the past to conform to the scholar’s normative priors.
Note: I will resume my review of Adam Smith Reconsidered sometime next week. (We still have Chapter 5, plus the Conclusion, to discuss.) In the meantime, weather permitting, I will be in Washington, D.C. during the remainder of this week to attend the 25th Annual Federalist Society Faculty Conference (see here) and present my prequel to Gödel’s Loophole (here) at the annual meeting of the American Association of Law Schools (AALS).
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